May a lawyer refuse to disclose the whereabouts of a client who jumped bail and is living as a fugitive under an assumed name?

Plain-English summary

The inquiry concerned a man ("M") with two criminal cases pending in federal court who made bond, failed to appear when the cases were called, and had been a fugitive for several months, living under an assumed name. His attorney admitted knowing where M was living and being in touch with him, but refused to disclose M's whereabouts. The question was whether the attorney was justified in refusing.

Because the subject was of nationwide importance, the Board obtained and adopted an opinion of the ABA's standing Committee on Professional Ethics and Grievances. That opinion reasoned that, although a client's address given to his attorney in a professional capacity is generally a privileged communication, public policy creates exceptions: when the communication concerns the future commission of an unlawful act or a continuing wrong, it is not privileged, because one engaged in committing a wrong can have no privileged witness and the attorney-client relation may not be used to conceal wrongdoing. A defendant admitted to bail remains in the custody of the law, and by gaining his liberty before being delivered in due process he commits the separate offense of escape. An attorney who failed to disclose such a fugitive's whereabouts would be aiding the client both to escape trial and to evade prosecution for escape. The committee therefore concluded the attorney's knowledge was not privileged and that he could be disciplined for failing to disclose it, and equally if he continued to act after the client refused to surrender on his advice; if the fugitive persisted in evading trial, the attorney should terminate the relationship, and failing to do so would violate his oath and duty to society. The committee noted that its earlier Opinion 23 was not in conflict.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The confidentiality analysis rests on the canon-era code and the common-law privilege as understood then; the modern rules on confidentiality, the crime-fraud exception, and mandatory and permissive disclosure take a different and more detailed form. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is a fugitive client's location protected by the privilege?

A: Not under this opinion. The Board adopted the ABA committee's view that a bail-jumping fugitive client's whereabouts is not a privileged communication, because it concerns a continuing wrong.

Q: Could the lawyer be disciplined for staying silent?

A: Yes. The opinion concluded the lawyer has a duty to disclose the whereabouts to the proper authorities and may be disciplined for refusing.

Q: What if the client refuses to surrender on the lawyer's advice?

A: The opinion held the lawyer must terminate the relationship if the fugitive persists in evading trial, and that failing to do so violates his oath and duty to society.

Background and rules framework

The opinion addressed the limits of the duty to preserve client confidences (Rule 39 of the canon-era Oklahoma Rules of Professional Conduct) by adopting an opinion of the ABA Committee on Professional Ethics and Grievances on the attorney-client privilege and continuing wrongs. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 39 (1929 Oklahoma Rules of Professional Conduct): the duty to preserve a client's confidences, subject to public-policy exceptions for continuing or future wrongs.

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances opinion (adopted by the Board): a fugitive client's whereabouts is not privileged and must be disclosed.
• ABA Committee on Professional Ethics and Grievances Op. 23: noted as not in conflict.

See also

• Okla. Bar Ethics Op. 93: Defending a co-defendant against a former client
• Okla. Bar Ethics Op. 91: Suing a former client and prior confidences

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-109/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted June 19, 1936

The Board of Governors is in receipt of the following inquiry:

"One M has two criminal cases pending against him in the federal court. He made bond for his appearance, failed to appear when the cases were called and has been a fugitive for several months. The attorney now represents him and admits that he knows where the defendant is living under an assumed name, and such attorney states that he is in touch with the defendant. This attorney refuses to disclose the whereabouts of M the fugitive. Is he justified in so doing?"

Inasmuch as the subject of the inquiry is of nationwide importance, the Board deemed it advisable to obtain the opinion of the standing committee of the American Bar Association on Professional Ethics and Grievances.

That committee has rendered an opinion which is as follows:

"Confidential Communications–An attorney's knowledge of the whereabouts of his client who, having fled the jurisdiction of the court while on bail after indictment, failed to appear for the trial, and who has remained absent from the jurisdiction for several months, living elsewhere under an assumed name, is not a privileged communication.

"Attorney and Client–It is the duty of an attorney to disclose to the proper authorities his information as to the whereabouts of a client who, having fled the jurisdiction of the court while on bail after indictment, failed to appear for trial, and who has remained absent from the jurisdiction for several months, living elsewhere under an assumed name. If the attorney fails to do so, he may be disciplined.

"The defendant in two criminal cases in a federal court gave bail for his appearance at the time set for trial, but failed to appear when the cases were called. While out on bail, he fled the jurisdiction of the court and has lived elsewhere for several months under an assumed name. His attorney knows where he is and has been in communication with him. A member of this Association asks whether the attorney for the fugitive may be disciplined for refusing to disclose his client's whereabouts to the proper authorities.

"It is the duty of an attorney to maintain the confidence and preserve inviolate the secrets of his client, and it is the general rule that when a client gives his address to his attorney while consulting him in a professional capacity on a business matter for the purpose of enabling the attorney to communicate with him in respect thereto, it is a privileged communication. However, there are some circumstances under which such a communication is not privileged for reasons founded on sound public policy. In such cases the attorney may not remain silent.

"When the communication by the client to his attorney is in respect to the future commission of an unlawful act or to a continuing wrong, the communication is not privileged. One who is actually engaged in committing a wrong can have no privileged witness, and public policy forbids that an attorney should assist in the commission thereof, or permit the relation of attorney and client to conceal the wrongdoing.

"A defendant in a criminal case when admitted to bail is not only regarded as in the custody of his bail but he is also in the custody of the law, and admission to bail does not deprive the court of its inherent power to deal with the person of the prisoner. Being in lawful custody, the defendant is guilty of an escape when he gains his liberty before he is delivered in due process of law, and is guilty of a separate offense for which he may be punished. In failing to disclose his client's whereabouts as a fugitive under these circumstances, the attorney would not only be aiding his client to escape trial on the charge for which he was indicted, but would likewise be aiding him in evading prosecution for the additional offense of escape.

"It is the opinion of the Committee that under such circumstances the attorney's knowledge of his client's whereabouts is not privileged, and that he may be disciplined for failing to disclose that information to the proper authorities. Equally, the attorney may be disciplined if, upon his client's refusal to surrender upon his advice, he continues to act as his attorney. If the fugitive persists in so evading a trial upon the charges against him, the attorney should terminate their relations. Failing in this, the attorney is guilty of a violation of his oath and of his duty to society.

"A similar question was considered by the Committee in Opinion 23. What was said in that Opinion, as applied to the facts then before the Committee, is not in conflict with the views here stated".